Page:First National Bank of DeWitt v. Cruthis.pdf/8

Rh  266, 7 S.W. 161 (1888); Neel v. State, 9 Ark. 259 (1845). Further, the right to a jury trial "does not apply to new rights created by the legislature since the adoption of the constitution." Henry v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987) (rev'd on other grounds by Act 293 of 1989). See also Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990). As this court stated in State v. Johnson, 26 Ark, 281, 289 (1870), "It has truly been said that a Constitution is not the beginning of government, and that it is adopted with a knowledge that it is, and was made in harmony and consonance with the condition of the things existing at the time of its adoption."

Because Amendment 80 left the right to a jury trial unaltered, the question presented is whether prior to adoption ofAmendment 80, Count I could be properly submitted to a jury for decision. FNB argues that because restitution was sought in Count I, it was an equitable action that had to be tried to the court.

[6–9] Restitution is founded upon the doctrine of unjust enrichment. Coley v. Green, 232 Ark 289, 335 S.W.2d 720 (1960). Unjust enrichment is an equitable doctrine Brookfield v. Rock Island Improvement Co., 205 Ark. 573, 169 S.W.2d 662 (1943). However, even though the doctrine is equitable, the issue of unjust enrichment has been submitted to the jury in circuit court where the assertion is wrongful retention of money because the cause of action "is one corresponding with the common law action of assumpsit for money had and received." Arkansas Nat'l Bank v. Martin, 110 Ark. 578, 584, 163 S.W. 795 (1914). See also Hutchinson v. Phillips, 11 Ark. 270 (1850). "The action for assumpsit is one for the recovery of damages for the nonperformance of a simple contract. Such a contract may be express or implied, and the action is based on the breach thereof, and is therefore ''ex contractu." Bertig v. Norman'', 101 Ark. 75, 80, 141 S.W 201 (1911). "In both the civil and common law, rights and causes of action are divided into two classes – those arising ex contractu (from a contract), and those arising ex delicto (from a delict or tort)." Helton v. Sisters of Mercy of St. Joseph's Hospital, 234 Ark. 76, 85, 351 S.W.2d 129 (1961), quoting Black's Law Dictionary 660 4th ed. (1951) (citing 3 Blackstone's Commentary 117). The use of courts of law in such actions is illustrated by a discussion in Import Motors v. Luker, 268 Ark. 1045, 599 S.W.2d 398 (1980), where this court stated:

The right to recover the $5,000,00 is on the basis of the common law action of assumpsit. Assumpsit has its origin in relief